Writing for the Daily Beast, long-time Supreme Court-watcher Stuart Taylor makes the case that on a wide range of huge and extremely controversial issues, Justice Anthony Kennedy is the law of the land.
There’s not really anything new here. The Supreme Court of recent decades has chosen to decide a lot of issues that it used to leave for the elected branches to hash out. The court has four pretty solid liberals and four pretty solid conservatives and Kennedy, who can swing the majority either way on a variety of issues. Writes Taylor:
“It’s no secret that Kennedy’s uniquely eclectic mix of views enables him to tip the balance to the left in 5-4 decisions on politically drenched issues including gay rights, abortion, and the death penalty, and to the right on issues including states’ rights, campaign spending, and guns.”
Kennedy will soon cast the decisive vote on the question of whether all states must endorse gay marriage, Taylor predicts. Taylor seems sympathetic to the cause, but troubled by the idea that Kennedy, “a 77-year-old man whose name is recognized by only 41 percent of the public—fewer than all but one of his eight colleagues—has more power by far than any president (or justice) in history to decree the law of the land on all of the issues mentioned above plus other issues, including racial affirmative-action preferences, free speech, school discipline, school integration, school prayer, the death penalty, and much more.”
Kennedy, Taylor notes, has never been elected to anything. And he adds that ” the Constitution’s text is so ambiguous when refracted through 225 years of history that respectable legal arguments can be made for almost any policy outcome that a justice might favor.”